Posted on February 13, 2024 by Samantha Hainke and Katie Mortimer 2

NCAT Affirms decision of the Commissioner for Fair Trading to disqualify a Registered Certifier for 10 years

The NSW Civil and Administrative Tribunal recently affirmed a decision by the Commissioner for Fair Trading (Commissioner) to cancel a certifier’s accreditation and disqualify him for being registered for a period of 10 years.

The Commissioner’s decision followed several instances of the certifier breaching conditions of his certificates of registration under the Building and Development Certifiers Act 2018 (BDC Act) and wrongly issuing a construction certificate and complying development certificates.

This decision serves as an important reminder that the system of accreditation and discipline for registered certifiers under the BDC Act, has been established to ‘protect the public from the harm that might flow from incompetence, lack of diligence or lack of integrity in the performance of the important public responsibilities exercised by certifiers.’ 

The Commissioner’s Decision 

The certifier held two certificates of registration as a registered certifier under the BDC Act, both in the class of “Building Surveyor – Unrestricted.” Previously, the certifier was registered as a “Building Surveyor – Restricted (class 1 and 10 buildings)”, and prior to then as an “A3 – Accredited Certifier – Building Surveying Grade 3”. 

Under the certifier’s previous registrations, he was not authorised to exercise the function of a principal certifier for a building other than a class 1 or 10 building.

Delegates of the Commissioner had found that: 

• between 2018 and 2019, the certifier acted as the Principal Certifying Authority for a class 2 development at Kenthurst (Kenthurst Development), and 
• between 2021 and 2022, the Applicant issued thirteen CDCs and three modified CDCs for 13 class 3 residential care developments which did not comply with minimum fire safety standards (CDCs).

Initially, a delegate of the Commissioner determined to disqualify the certifier for 8 years. After an internal review of that decision (sought by the certifier) the disqualification period was increased to 10 years. 

The Tribunal’s Decision 

The Tribunal agreed with the Commissioner’s decision, finding that the Applicant’s conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier (being a ground to take disciplinary action in s45 of the BDC Act).

In respect of the Kenthurst Development, the Tribunal found that the certifier: 

• knowingly acted outside his accreditation by issuing a construction certificate (CC) for a class 2 building. The Tribunal came to this conclusion due to inconsistent statements the certifier made between interviews with Fair Trading officers in 2022, affidavit evidence before the Tribunal, and evidence that the certifier gave in cross examination before the Tribunal – where he accepted that he realised the Kenthurst Development was a class 2 building when issuing the CC, 
• made false and misleading statements in the CC by reason of misstating that the building was “Class 1a – Class 10a – Class 10b”,
• approved architectural plans with the CC that were inconsistent with requirements of the applicable development consent, that mandated compliance with the Swimming Pools Act 1992. The plans approved with the CC did not show a swimming pool fence, and showed the residential building having openings to the swimming pool,
• approved architectural plans with the CC that did not demonstrate that the proposed building would comply with the relevant fire safety requirements of the BCA. The plans contained no provision for a fire hydrant, no provision for a smoke alarm system and/or smoke detection system. 

In respect of the CDCs, the Tribunal found amongst other things, that the certifier: 

• incorrectly classified the proposed buildings for which he issued CDCs. The Commissioner submitted, and the Tribunal accepted, that the developments the subject of the 13 CDCs were properly classified as ‘residential care buildings’. The Tribunal considered there were clear indications in the application documents before the certifier, that the development were not properly class 1 or 10 buildings, 
• issued CDCs without required fire safety measures for class 3 buildings. Class 3 buildings require more stringent fire safety requirements than class 1 buildings – including in this instance a need for a sprinkler system and automatic smoke detection and alarm systems. The CDCs did not contain these minimum fire safety measures, 
• misrepresented the total floor area of 3 of the developments approved via CDC. To constitute a class 1b building, a building must be less than 300 square metres. The Commissioner submitted and the Tribunal agreed, that the certifier did not properly calculate floor area, finding 3 developments to be 299 square metres, when in actual fact they were 375.31 square metres, 378.92 square metres and 357.08 square metres. 

Appropriate Disciplinary Action 

The Tribunal affirmed the Commissioner’s decision to disqualify the Applicant of 10 years, stating that the Applicant presently lacked ‘the necessary understanding and capacity to comply with the certification legislation and to carry out his functions as a registered certifier safely, competently and reliably’. 

The Tribunal considered the Applicant’s errors in issuing the CDCs as being ‘both significant and numerous and had the potential to compromise the safety of vulnerable people‘. 

The Tribunal also had regard to an object of the BDC Act, which is to ‘recognise that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest‘. The Tribunal considered that a long period of disqualification was required in the Applicant’s case to ensure that object was achieved.

Key Takeaways

Classifying Buildings under the NCC 

When justifying the position that he had taken in respect of the CDCs, the certifier explained his actions by referring to definitions in various planning instruments that applied to the issue of CDCs. However, the Tribunal stated at [86] that: 

Mr Orfali’s approach to classifying the proposed buildings under the correct BCA class was confused. The classification of buildings under the BCA is a different exercise from the determination of whether a building meets the requirements for complying development under a planning instrument, but Mr Orfali relied upon planning instruments to classify the proposed buildings. Mr Orfali should have determined first the classification of the proposed buildings, so as to form a view as to whether he was authorised to exercise the function of a principal certifier for each of those buildings and, if so, under what circumstances. Up until 15 February 2022, he should not have proceeded to consider the requirements of the planning instrument unless he was satisfied that the building was a class 1 or class 10 building, and therefore a building within the scope of his registration.

The decision is a reminder that certifiers should first check that they are acting within the conditions of their certificate of registration, in order to determine if they can act as a principal certifier. In this case, by the certifier not correctly classifying the NCC class of each building, consequent errors flowed through each certificate, particularly relating to fire safety standards. 

Disciplinary Action 

Registered certifiers play an important role in exercising public responsibilities under the Environmental Planning and Assessment Act 1979, with any errors having the potential to create serious potential impacts on public health, safety and amenity. The BDC Act requires certifiers to carry out their functions as a registered certifier competently, diligently and with integrity, or risk serious disciplinary consequences. 

You can read the decision here: Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4.

If you have any questions in relation to this post, please contact Katie Mortimer on 8235 9716 or Samantha Hainke on 8235 9727.